People v. Cole

• Decision Date: 24 June 1971
• Docket Number: Gen. No. 11111
• Citation: 132 Ill.App.2d 1041,271 N.E.2d 385
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stuart COLE, a/k/a Stuart Kol, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 385

271 N.E.2d 385

132 Ill.App.2d 1041

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stuart COLE, a/k/a Stuart Kol, Defendant-Appellant.

Gen. No. 11111.

Appellate Court of Illinois, Fourth District.

June 24, 1971.

As Modiifed on Denial of Rehearing July 30, 1971.

Robert Weiner, Springfield, for defendant-appellant.

Richard A. Hollis, State's Atty., Sangamon County, Springfield, Robert James Steigmann, Richard A. Frandsen, Asst. State's Attys., Sangamon County, for plaintiff-appellee.

SCHOLZ, Justice.

The defendant appeals from his conviction of murder in a jury trial. A sentence of fifty to seventy-five years was imposed.

In his brief, the defendant asserts eight areas of review to be considered by this court. We need discuss only two of these issues--first, the impartiality of the jury, and second, because of our decision, the question of search and seizure.

In the court of the Voir dire examination, the defendant exhausted his peremptory challenges. Subsequent thereto a prospective juror, Russell Davis, was examined as one of panel of four. Davis was a lifelong resident of Sangamon County, whose wife was employed in the courthouse as a deputy of the Board of Review; whose son was employed as a civil engineer for the State of Illinois in the Highway Department; who had heard about the case through the news media; who had known the State's Attorney and his assistant for a number of years; who had worked for the State's Attorney in his campaign; who was a witness for the State's Attorney in a case in which he was privately employed; who was acquainted with one of the decedents and had conversed with him on the telephone; who had lived next door to a doctor who was a material witness and who also had been the juror's family doctor for a number of years; who indicated he had known the assistant State's Attorney 'way back'; whose youngest son was married to a sister of a witness; who was related to another witness; who was personally acquainted with Edward Ryan, a material witness, and the sheriff of the county; who had served as treasurer of the campaign for Ryan; who had discussed this case with Ryan; and who obviously was a man well-acquainted with Springfield, its environs, its citizens and its 'happenings'.

Mr. Davis, throughout his Voir dire examination, indicated concern about his service, as evidenced by certain of his answers:

Q. Mr. Davis, in response to the question by the Court that you would not permit this relationship we might have had as when you testified as a witness at a prior hearing, this would not interfere with your duties as a juror if you are selected and you would render a fair and impartial verdict in this case, is that correct?

'A. I'm only human, but I would attempt not to, yes.'

'Q. And if you were chosen as a juror, Mr. Davis, I'm sure that you would set aside any acquaintanceship that you might have had with me or Mr. Hollis in deliberating in this case?

'A. I could do that, but I just wonder what the public would think.'

Before examining the panel containing the juror Davis, the attorney for the defendant attempted to have Davis excused for cause. After a hearing in chambers, the court denied the challenge for cause and stated:

'You put the Court in a position here that a man has made all the tests that is prescribed by law and if this Court were to dismiss this juror for challenge for cause it would be indicating that the Court would be not accepting what he said here.'

After the court denied the challenge, the attorney for the defendant, aware that his peremptory challenges were exhausted. attempted to present himself and the defendant as favorably as possible in the eyes of not only the juror Davis, but the venire as well.

This trial tactic is not a waiver of the defendant's right to object to the jury as selected.

Section 9 of Art. II of the Constitution of 1870, Ill.Rev.Stat. (1969), S.H.A., guarantees:

'In all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.'

In People v. Cravens, 375 Ill. 495, 497, 31 N.E.2d 938, 939 (1941), the Supreme Court said:

'It has often been stated by this court that great care should be exercised to preserve that constitutional right to a defendant, be he guilty or innocent. A juror, to be qualified, must come into the trial of the case with a mind uncommitted on the question of guilt or innocence of the defendant and prepared to weigh the evidence impartially. * * *' The court went on to say:

'It was a cardinal rule at common law that jurors, to be qualified as impartial, should stand indifferent between the parties and be wholly free from even the suspicion of bias. * * *' (At 497, 31 N.E.2d at 939).

The guarantee of trial by jury insures to a defendant in a criminal case the right to have the facts in controversy determined by twelve impartial jurors. People v. Ward, 32 Ill.2d 253, 204 N.E.2d 741, cert. denied, 384 U.S. 1022, 86 S.Ct. 1947, 16 L.Ed.2d 1026 (1966); People v. Kolep, 29 Ill.2d 116, 193 N.E.2d 753 (1963).

Our Supreme Court has said:

'The examination of prospective jurors on Voir dire is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among persons summoned as jurors.' People v. Kurtz, 37 Ill.2d 103, 108, 224 N.E.2d 817, 820 (1967); People v. Gendron, 41 Ill.2d 351, 355, 243 N.E.2d 208, 211 (1969).

If a juror meets the statutory qualifications, the determination of whether a challenge for cause should be allowed rests within the sound discretion of the trial court, and his ruling will not be disturbed unless he has clearly abused his discretion. People v. Harris, 38 Ill.2d 552, 232 N.E.2d 721 (1968).

People v. Ward and People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1 (1970), are two cases in which the court followed the basic rules as stated herein and then gave individual attention to the case as to whether or not there was abuse of discretion. In the Ward case, that which the court called a 'serious objection' was the fact that one of the jurors was found, after the trial of the cause, to be a special deputy sheriff. The court found that this was a courtesy appointment without compensation and without the individual functioning as a deputy. In conclusion, the court said:

'On careful consideration we think the presence of this individual on the jury was not sufficiently prejudicial to warrant reversal.' People v. Ward, 32 Ill.2d at 258, 204 N.E.2d at 744.

In the Cesarz case, the court considered three jurors whose qualifications the appellant raised on appeal. Two of the jurors were excused peremptorily, and the defense counsel attempted to excuse one juror for cause. This occurred after his peremptory challenges were exhausted and the court concluded, 'We do not believe that the court was required to sustain defendant's challenge for cause as to this juror.' People v. Cesarz, 44 Ill.2d at 189, 255 N.E.2d at 6.

In the Cesarz case, Justice Schaefer strongly dissented, quoting from United States v. Wood, 299 U.S. 123, 145, 57 S.Ct. 177, 81 L.Ed. 78, 88, in stating:

'The determination of whether or not a juror can be impartial must be based on human experience which recognizes that influences can operate even though they are not consciously present.'

In State v. Jackson, 43 N.J. 148, 203 A.2d 1, 11 A.L.R.3d 841, cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965), there is an excellent discussion of the historical background of juries and the requirements of impartiality. The Supreme Court of New Jersey examined all of the authority available throughout the States and to quote in detail from their opinion would unduly prolong this opinion. They did, however, quote from Judge Murrah in United States v. Chapman, 158 F.2d 417, 421 (10 Cir. 1946), in which Judge Murrah said: 'It is said that when a juror testifies that he believes he can, and the court finds as a matter of fact that he will, if selected, render an impartial verdict on the evidence, he is an impartial juror as required by the law. (Citing case.) A juror's answer to questions touching his state of mind is primary evidence of his competency, but the ultimate question is a judicial one for the court to decide, and in case of doubt, justice demands that the challenge be allowed. (Citing cases.) * * *' The New Jersey court also quoted from the Florida Supreme Court, which said: '* * * if there is a question as to the juror's 'sense of fairness or his mental integrity,' he should be excused and that '(i)f error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors' (121 So., at p. 796).' Johnson v. Reynolds, 97 Fla. 591, 121 So. 793 (1929). In conclusion the New Jersey court said: 'We, or course, recognize that the trial court is vested with broad discretionary powers in determining the qualifications of jurors and that its exercise of discretion will ordinarily not be disturbed on appeal. (Citing case.)' State v. Jackson, 43 N.J. at 160, 203 A.2d at 7, 11 A.L.R.3d at 850--851.

This court, in People v. Tillman, 116 Ill.App.2d 24, 253 N.E.2d 873 (4th Dist. recognized the law stated in this opinion and further established that each case should be determined on its individual merits. The court reviewed People v. Kirkpatrick, 413 Ill. 595, 110 N.E.2d 519 (1953); People v. Ortiz, 320 Ill. 205, 150 N.E. 708 (1926), and People v. Gold, 38 Ill.2d 510, 232 N.E.2d 702, cert. denied, 392 U.S. 940, 88 S.Ct. 2317, 20 L.Ed.2d 1400 (1968), and People v. Harris, 38 Ill.2d 552, 232 N.E.2d 721. It distinguished between each of these cases and the Tillman case, and held that there had been no clear abuse of discretion.

'* * * justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11, 16 (1954).

We hold that not only should a juror be...